NRF forges on with swipe fee battle

November 2, 2012

The National Retail Federation is continuing its fight against credit card swipe fees by asking a judge to reject a proposed class-action settlement of a federal antitrust lawsuit, saying it would not bring the fees charged by Visa and MasterCard under control and does not give retailers who oppose it an adequate mechanism to opt out.

“The proposal pending before the court does nothing to keep these soaring fees from continuing to drive prices higher for American consumers, and would block merchants who believe in true swipe fee reform from ever having their day in court,” NRF SVP and general counsel Mallory Duncan said. “While the remaining parties would like to treat preliminary approval as a routine procedural step, the court should recognize that this settlement is so legally flawed it cannot be tweaked into fairness.”

According to NRF, nine mostly small merchants supporting the settlement filed a motion with U.S. District Court Judge John Gleeson in Brooklyn, N.Y., on Oct. 19 asking for preliminary approval of the proposal, and oral arguments are scheduled for Nov. 9. Preliminary approval would begin a months-long process in which all retailers who accept Visa and MasterCard credit cards would be sent notices giving them the opportunity to either accept the settlement or opt out of part of it. Arguments on the merits of the settlement and whether it should be given final approval would not begin until sometime next year.

NRF argued in a brief filed Thursday that preliminary approval should be denied, saying the settlement cannot legally be certified as a class action because it attempts to force a one-size-fits-all solution onto an wildly diverse group of merchants. NRF also argued that a provision barring all retailers -- including those who opt out of the settlement and even those who do not yet exist -- from filing future lawsuits over swipe fees is impermissibly broad under federal law. The provision would allow the card industry to continue its anticompetitive practices and fee increases unchallenged.

NRF said the unusual structure of the settlement gives merchants who oppose it no mechanism to truly opt out. Rather than being able to opt out entirely, retailers would only be able to reject their share of the $7.25 billion offered as compensation for past price fixing, and would remain bound by flawed injunctive relief that would entrench current card industry practices rather than take steps to limit future fee hikes.